[2023] UKUT 306 (LC)

It became apparent to the Tribunal in considering the FTT’s decision and the parties’ representations that whilst the FTT had correctly construed Schedule 14, it had gone astray in deciding that CCG was a “person in control” of the premises, so that in fact Schedule 14 was not relevant. This appeal was decided under the Tribunal’s written representations procedure, and having reached that provisional conclusion I asked the parties for their views as to whether the existing ground of appeal was wide enough to cover the point, and as to whether the Tribunal should grant permission to appeal on this further point if the appellants chose to apply for permission to appeal on it at this late stage.

The parties in their written representations agreed that the existing grounds of appeal were not wide enough to encompass the point, and the appellants sought permission to appeal on the further ground that the FTT erred in deciding that CCG was the person in control of the premises. Mr Penny of Flat Justice observed that he had made an argument to that effect before the FTT.

The respondent argued that I should not grant permission to appeal on this additional ground. The appellants chose, with legal advice, to appeal on one particular ground and it would be unfair to the respondent to allow them to extend the appeal, so many months down the line, to another ground. There is force in that argument. However, the FTT’s error occurred because the appropriate authorities were not drawn to its attention by either party, and if left uncorrected there is a risk that it will be relied upon in the future (despite the FTT’s decisions having no precedent value) to the detriment of tenants for whose protection the HMO licensing regime was enacted. The error is too important to be left uncorrected and so on 15 November 2023 I granted permission to appeal on the additional ground.

The respondent made further submissions on 4 December 2023 after I granted permission, and I have taken those submissions into account.